April 22, 2010

DOJ and FTC: Talk About Competition

Forget Brazil, Egypt or Indonesia - to find cultural differences in competition policy, look no further than the Federal Trade Commission and the Department of Justice.

A showcase panel discussion at the American Bar Association’s Antitrust Law Spring Meeting today featured Covington & Burling partner Thomas Barnett, head of the Antitrust Division from 2005 to 2008, and FTC Commissioner William Kovacic, who chaired the agency from 2008 to 2009.

Kovacic described advising China on the creation of a competition authority, when the question arose whether multiple agencies should be charged with the task. “They asked, ‘What’s your relationship with DOJ?’ And my answer was ‘It’s time for a coffee break.’”

In highlighting differences between the agencies, Kovacic noted that the FTC tends to have a closer relationship with Congress.

“The Federal Trade Commission is an independent agency, but the question is, independent from whom?” he said. “I think it’s telling that we’re further from the White House than the DOJ, but closer to the building at the other end of the avenue.”

He continued, “We receive letters from Congress saying ‘We’d like a confidential briefing on the status of a current merger review,’ and we do grant these. Tom [Barnett]’s agency says, ‘We’ll be in touch,' which means never.”

Barnett responded, “There are all these cultural divides between the agencies I didn’t know about.” The key difference, he said, is that DOJ has “the mentality of a criminal enforcement, executive branch prosecutorial approach, which is broader than just the Antitrust Division.”

“The Justice Department wants to be independent from the Hill,” he said, as opposed to a regulatory agency, “where you expect more interaction.”

At the end of the discussion, Barnett drew a laugh when discussing leniency programs that reward individuals for being the first to confess. “Some things are fairly universal, like acting in your perceived self-interest," he said. "If I’m put on the spot and realize it’s either me or Bill [Kovacic], sorry Bill."